APPA’ s suggested 316(b) letter
[Public Power Utility or City Letterhead]
[Date]
[ Name of Director
State Permitting Agency]
Request for Schedule to Submit Information to Comply
with the Phase II 316(b) Rule (40 CFR Part 125 Subpart J)
[Dear Insert name of Director of State Permitting Agency:]
By this letter [insert name of public power utility] requests a schedule for submitting the information required by EPA’s New Phase II 316(b) Rule for cooling water intake structures for the [ insert utility name]. We ask that we be allowed to submit to you the information required by 40 CFR 125.95 no later than [January 9, 2008]. In our circumstances, this date is as “expeditious as practicable.” The basis for our request is explained below.
As you know, on July 9, 2004, EPA published its final rule prescribing how “existing facilities” may comply with Section 316(b) of the Clean Water Act. 69 Fed. Reg. 41575, 41683 (July 9, 2004). For most existing faculties, this rule will require a large amount of data to establish “best technology available” for the facility’s intake structure and to demonstrate compliance with the rule.
[Name of utility ] is a “Phase II existing facility” within the meaning of 40 CFR 125.91. As such, it is required to comply with the Phase II rule, and in particular to submit the studies and information required by 40 CFR 125.95.
Section 125.95 of the new rule requires detailed studies and other information to establish what intake structure technology or other measures will be used to comply with the rule. Ordinarily this material is to be submitted with the facility’s next application for renewal of its NPDES permit. See 40 CFR 125.95, 122.21(r)(1)(ii), 122.21(d)(2). For permits that expire less than four years after the rule was published on July 9, 2004 (that is, before July 9, 2008), the operator may have up to three and half years to submit the information, so long as it is submitted “as expeditiously as practicable.” See 40 CFR 125.95(a)(2)(ii). The facility may have even longer, until the end of the permit term, under 40 CFR 122.21(d)(2)(i), if the permitting agency agrees.
The current NPDES permit for [Power Plant Name] expires ____________, well before July 9, 2008. I therefore request that [Power Company] be allowed to submit the information called for by 125.95 as expeditiously as practicable, which, as explained below, will require until [January 9, 2008].
In order to satisfy the “expeditiously as practicable” requirement, [ name of utility ] began as soon as the rule was published to collect the necessary information. We began, as early as ________________________, by [describe the early steps the company took to analyze and comply with the rule, including hiring consultants].
Despite our early start, we will still need until [January 9, 2008,] to complete the studies and collect the information required by 40 CFR 125.95. Our detailed schedule is explained below.
Cooling Water System Data
First, all facilities covered by the Phase II Rule must submit “cooling water system data” as required by 40 CFR 122.21(r)(5). This includes a narrative description of the operation of the cooling water system, its relationship to cooling water intake structures, the proportion of the design intake flow that is used in the system, the number of days of the year the cooling water system is in operation, and the seasonal changes in the operation of the system, if applicable. It also includes design and engineering calculations prepared by a qualified professional and supporting data to support the description of the operation of the cooling water system. See 40 CFR 122.21(R)(5)(i) and (ii).
We estimate we will need until ________________ to collect the cooling water system data.
Proposal for Information Collection
Under 40 CFR 125.95(a)(1), we must also submit to you a Proposal for Information Collection (PIC). This is submitted on a different schedule from the rest of the material required.
Description of Intake Technologies
Preparing the PIC is a large undertaking. The PIC must contain the items listed in 40 CFR 125.95(b)(1), including a description of proposed and/or implemented technologies, operational measures, and/or restoration measures to be evaluated, a list and description of historical studies characterizing impingement mortality and entrainment and/or the physical and biological conditions in the vicinity of the cooling water intake structures and their relevance to the proposed study. For existing data, it must demonstrate the extent to which the data are representative of current conditions and that the data were collected using appropriate quality assurance/quality control procedures. The PIC must also include a summary of past or ongoing consultations with federal, state and tribal fish and wildlife agencies and a copy of their written comments, as well as a sampling plan for any new field studies describing all methods and quality assurance/quality control procedures for sampling and data analysis.
We estimate we will need until _____________ to provide the description of technologies and other measures required by 40 CFR 125.95(b)(1). [Or we will send you our PIC as soon as possible.] We will be interested in hearing your reaction to that PIC and will ask that you either approve it or advise us of any needed changes within 60 days. See 40 CFR 125.95(a)(1), 125.95(b)(1).
Source Water Flow Information
We will also have to submit to you source waterbody flow information as required by 40 CFR 125.95(b)(2). [Note: Select one of the following] [Because ______ is on a freshwater river or stream, this includes the annual mean flow if a source waterbody is a freshwater river or stream as well as engineering calculations to show whether the design intake flow is greater than five percent of the mean annual flow of the river or stream. Representative historical data for up to ten years must be used.] [Because _________ withdraws cooling water from a lake (other than the Great Lakes) or a reservoir and we propose to increase the design intake flow of the facility, we must provide a description of the thermal stratification in the waterbody and any supporting documentation and engineering calculations to show that the total design intake flow after the increase will not disrupt the natural thermal stratification and turnover pattern in a way that adversely impacts fisheries. We must include the results of consultations with federal, state, or tribal fish and wildlife management agencies.]
We estimate it will take until ______________ to provide the source waterbody flow information.
Impingement Mortality and/or Entrainment Characterization Study
We must also provide, under 40 CFR 125.95(b)(3), an Impingement Mortality and/or Entrainment Characterization Study. This must include (i) taxonomic identifications of all life stages of fish, shellfish, and any species protected under federal, state, or tribal law that are in the vicinity of the cooling water intake structures and are susceptible to impingement and entrainment; (ii) a characterization of all life stages of fish, shellfish, and any protected species, including a description of the abundance and temporal and spatial characteristics in the vicinity of the cooling water intake structures, based on sufficient data to characterize annual, seasonal, and diel variations in impingement mortality and entrainment (e.g., related to climate and weather differences, spawning, feedings, and water column migration). These may include historical data that are representative of current operation of the facility and of biological conditions at the site.
We must also document the current impingement mortality and entrainment of all life stages of fish, shellfish, and protected species and provide an estimate of impingement mortality and entrainment to be used as the “calculation baseline.” See 40 CFR 125.95(b)(3)(iii). This may include historical data representative of the current operation of the facility and of biological conditions at the site. Impingement mortality and entrainment samples to support the calculations must be collected during periods of representative operational flows for the cooling water intake structure, and the flows associated with the samples must be documented.
[ Include any particular facts about how long it will take to collect the information. For example, if you know you will have to sample during a spawning season and cannot begin until spring 2005 at the earliest, explain why. If there are university studies of the waterbody that you must review to see if their data are characteristic of current conditions and were collected with adequate QA/QC procedures, say so. Provide details if possible .]
We estimate we will need until ______________ to provide the Impingement Mortality and/or Entrainment Characterization Study.
Design and Construction Technology Plan
Another analysis that must be provided is the Design and Construction Technology Plan. See 40 CFR 125.95(b)(4). If we decide to use design and construction technologies and/or operational measures to comply with the Phase II rule, we must submit a plan that provides a capacity utilization rate for the facility (or for individual intake structures where applicable) and provide supporting data (including the average annual net generation of the facility in MWh) measured over a five-year period (if available) of representative operating conditions and the total net capacity of the facility in MW, along with the underlying calculations. The plan must explain the technologies and/or operational measures that we have in place and/or have selected to meet the requirements of the rule.
This Design and Construction Technology Plan must contain a large amount of information, as described in 40 CFR 125.95(b)(4)(A)-(D). This information includes (A) a narrative description of the design and operation of all design and construction technologies and/or operational measures, including fish handling and return systems, and information that demonstrates the efficacy of the technologies and/or operational measures; (B) a narrative description of the design and operation of all design and construction technologies and/or operational measures and information that demonstrates the efficacy of the technologies and/or operational measures for entrainment; (C) calculations of the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would be achieved by the technologies and/or operational measures we have selected; and (D) design and engineering calculations, drawings, and estimates prepared by a qualified professional to support the descriptions described above.
We estimate we will need until ___________ to provide you with the Design and Construction Technology Plan.
Technology Installation and Operation Plan (TIOP)
Assuming we decide that the best way to comply with the Phase II rule is to use design and construction technologies and/or operational measures, in whole or in part, we must submit to you the following information, in accordance with 40 CFR 125.95(b)(4)(ii): (A) A schedule for the installation and maintenance of any new design and construction technologies; (B) a list of operational and other parameters to be monitored and the location and frequency that we will monitor them; (C) a list of activities we will undertake to ensure to the degree practicable the efficacy of installed design and construction technologies and operational measures and our schedule for implementing them; (D) a schedule and methodology for assessing the efficacy of any installed design and construction technologies and operational measures in meeting applicable performance standards or site-specific requirements, including an “adaptive management plan” for revising design and construction technologies, operational measures, operation and maintenance requirements, and/or monitoring requirements in the event our assessment indicates that applicable performance or site-specific requirements are not being met; and (E) if we choose the compliance alternative in 125.94(a)(4) (wedge-wire screens or a technology approved by the state), documentation that the appropriate site conditions described in 125.99(a) or (b) exist at our facility.
The TIOP is an extremely important document, and we expect to use it to determine compliance with the Phase II rule throughout the life of the plant. We anticipate it will take us until ____________ to draft a TIOP for your review.
Restoration Plan
If we determine that we should use restoration measures to comply with the new rule, in whole or in part, we must provide you a Restoration Plan. This must include the information described in 40 CFR 125.95(b)(5). It must include a plan using an adaptive management method for implementing, maintaining, and demonstrating the efficacy of the restoration measures that we select and for determining the extent to which the restoration measures, or the restoration measures in combination with design and construction technologies and operational measures, have met the applicable performance standards.
If we decide to use restoration measures, in whole or in part, to comply with the Phase II rule, we estimate it will take until ____________ to prepare a Restoration Plan.
Site-Specific Requirements
If we determine that site-specific requirements are appropriate because the cost of complying with the Phase II rule will be “significantly greater” than either the cost that EPA considered in its rulemaking or the benefits of complying with the rule, we will have to submit the information described in 40 CFR 125.95(b)(6). This includes a Comprehensive Cost Evaluation Study and, for the cost-benefit analysis, a Benefits Evaluation Study. We must also include a Site-Specific Technology Plan describing and justifying the site-specific requirements.
If we decide to request site-specific requirements under one of EPA’s cost tests, we estimate it will take until __________ to provide the necessary economic information.
Verification Monitoring Plan
Finally, we must prepare a Verification Monitoring Plan. See 40 CFR 125.95(b)(7). This is a plan to conduct, at a minimum, two years of monitoring to verify the full-scale performance of the proposed or already implemented technologies and/or operational measures.
We estimate that it will require until ____________ to complete the Verification Monitoring Plan.
Conclusion
Collecting, generating, compiling, and analyzing the large amount of information required by the Phase II 316(b) rule will require a substantial effort. We will have to both collect and review already-existing data on the plant and the source waterbody, and we may have to generate significant new biological information.
Because the Phase II rule is new and untried, we foresee the need to coordinate closely with your department as we collect the necessary information, analyze it, and determine what combination of technology, operational measures, or restoration measures will best meet the Phase II rule for [ insert utility name ]. We hope your staff will be available to consult with us over the next few months as we complete these efforts.
For the above reasons, we request that we be allowed until [January 9, 2008,] to submit the information required for a permit application by the Phase II Rule, 40 CFR Part 125 Subpart J. I look forward to talking to you and your staff regarding implementation of the 316(b) program and can be reached at (xxx) yyy-zzz.
Sincerely,